Email and law in the news

A couple things related to the intersection of email and law happened recently.
The 6th circuit court ruled that the government must have a search warrant before accessing email. The published opinion is interesting reading, not just because of the courts ruling on the law but also because of the defendant. Berkeley Premium Nutraceuticals toyed with spamming to advertise their product as a brief search of public reporting sites shows. The extent and effort they went to in order to stay below the thresholds for losing their merchant accounts is reminiscent of the effort some mailers go through to get mail through ISP filters.
The other bit of interesting reading is the Microsoft motion to dismiss the case brought against them by Holomaxx. It is a relatively short brief (33 pages) and 3 of those pages are simply a listing of the relevant cases demonstrating ISPs are allowed to filter mail as they see fit. 2 more pages are dedicated to listing the relevant Federal and State statutes. I strongly encourage anyone considering suing any large ISP to to read this pleading. These lawyers understand email law inside and out and they are not going to mess around. They also have both statute and case law on their side. They point this out before the end of page 1:

Holomaxx’s claims against Microsoft are without merit. First, Claims 3-6 and 9—based on Microsoft’s filtering of Holomaxx’s e-mails—are barred by the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. Section 230. The CDA explicitly exempts service providers such as Microsoft from liability for filtering of objectionable content, including objectionable e-mail.
Through the CDA, Congress immunized Microsoft from precisely the sort of liability that Holomaxx seeks to impose here. Indeed, one federal court recently held that claims based on e-mail filtering were barred by the CDA. See e360Insight, LLC, 546 F. Supp. 2d at 609-610. The same analysis should be adopted here. Further, even accepting Holomaxx’s allegations as true, every cause of action based on Microsoft’s filtering activities (Claims 1-6 and 9) independently fails to state a claim upon which relief may be granted, as Holomaxx has failed to allege legally sufficient facts and puts forth theories that are unsupported in the law.

Suing ISPs to force them to accept mail is a failed business model, the law is just not on the senders’ side.

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We're gonna party like it's 1996!

Over on deliverability.com Dela Quist has a long blog post up talking about how changes to Hotmail and Gmail’s priority inbox are a class action suit waiting to happen.
All I can say is that it’s all been tried before. Cyberpromotions v. AOL started the ball rolling when they tried to use the First Amendment to force AOL to accept their unsolicited email. The courts said No.
Time goes on and things change. No one argues Sanford wasn’t spamming, he even admitted as much in his court documents. He was attempting to force AOL to accept his unsolicited commercial email for their users. Dela’s arguments center around solicited mail, though.
Do I really think that minor difference in terminology going to change things?
No.
First off “solicited” has a very squishy meaning when looking at any company, particularly large national brands. “We bought a list” and “This person made a purchase from us” are more common than any email marketer wants to admit to. Buying, selling and assuming permission are par for the course in the “legitimate” email marketing world. Just because the marketer tells me that I solicited their email does not actually mean I solicited their email.
Secondly, email marketers don’t get to dictate what recipients do and do not want. Do ISPs occasionally make boneheaded filtering decisions? I’d be a fool to say no. But more often than not when an ISP blocks your mail or filters it into the bulk folder they are doing it because the recipients don’t want that mail and don’t care that it’s in the bulk folder. Sorry, much of the incredibly important marketing mail isn’t actually that important to the recipient.
Dela mentions things like bank statements and bills. Does he really think that recipients are too stupid to add the from address to their address books? Or create specific filters so they can get the mail they want? People do this regularly and if they really want mail they have the tools, provided by the ISP, to make the mail they want get to where they want it.
Finally, there is this little law that protects ISPs. 47 USC 230 states:

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Freemail opens

Justin Coffey commented on my check your assumptions post pointing out his data on opens related to ISPs. He says:

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Botnets and viruses and phishing, oh my!

MessageLabs released their monthly report on email threats yesterday. Many media outlets picked up and reported that 41% of spam was from a the Rustock botnet.
Other highlights from the report include:

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